White v. Premo

• Decision Date: 31 May 2019
• Docket Number: CC 11C24315 (SC S065188)
• Citation: 443 P.3d 597,365 Or. 1
• Parties: Lydell Marcus WHITE, Petitioner on Review, v. Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.
• Court: Oregon Supreme Court

365 Or. 1

443 P.3d 597

Lydell Marcus WHITE, Petitioner on Review,

v.Jeff PREMO, Superintendent, Oregon State Penitentiary, Respondent on Review.

CC 11C24315 (SC S065188)

Supreme Court of Oregon.

Argued and submitted March 7, 2019, at the University of Oregon School of Law, Eugene, Oregon.

May 31, 2019

Ryan T. O'Connor, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.

Paul L. Smith, Deputy Solicitor General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Aliza B. Kaplan, Lewis & Clark Law School, Portland, filed the brief for amici curiae Constitutional Law and Criminal Procedure Scholars.

Alexander A. Wheatley, Fisher & Phillips, LLC, Portland filed the brief for amici curiae Lewis & Clark Law School's Criminal Justice Reform Clinic, Oregon Criminal Defense Lawyers Association, Oregon Justice Resource Center, Juvenile Law Center, and Phillips Black, Inc.

Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, and Nelson, Justices, and Kistler and Brewer, Senior Justices pro tempore.^**

WALTERS, C. J.

In Miller v. Alabama , 567 U.S. 460, 132 S.Ct. 2455, 183 L.Ed.2d 407 (2012), the United States Supreme Court determined that it is cruel and unusual punishment to sentence a juvenile to life without parole unless a court determines that the juvenile's crime does not reflect the " ‘transient immaturity’ " of youth, but instead, demonstrates that the juvenile is " ‘the rare juvenile offender whose crime reflects irreparable corruption.’ " Id. at 479-80, 132 S.Ct. 2455 (quoting Roper v. Simmons , 543 U.S. 551, 573, 125 S.Ct. 1183, 161 L.Ed.2d 1 (2005) ). In this post-conviction proceeding, petitioner, a juvenile offender, contends that the 800-month sentence he is serving for a single homicide is the functional equivalent of life without parole and was imposed without a hearing that satisfied the procedural and substantive requirements of the Eighth Amendment. For the reasons that follow, we hold that petitioner is not procedurally barred from seeking post-conviction relief and that his sentence is subject to Miller 's protections. Because this record does not convince us that the sentencing court determined that petitioner's crime reflects irreparable corruption, we reverse the decisions of the Court of Appeals and the post-conviction court and remand to the post-conviction court for further proceedings.

We begin our discussion with the fact that Miller was decided almost 20 years after petitioner and his twin brother, Laycelle, both then 15 years old, murdered an elderly couple. Petitioner was convicted of those murders in 1995, and he appealed to the Court of Appeals. That court affirmed without opinion, and this court denied review. State v. White (Lydell) , 139 Or. App. 136, 911 P.2d 1287, rev. den. , 323 Or. 691, 920 P.2d 550 (1996). In 1997, petitioner filed his first petition for post-conviction relief. The post-conviction court denied relief, and, on appeal, the Court of Appeals affirmed without opinion. This court again denied review. White v. Thompson , 163 Or. App. 416, 991 P.2d 63 (1999), rev. den. , 329 Or. 607, 994 P.2d 132 (2000). Later, petitioner filed a second petition for post-conviction relief, raising a claim under Blakely v. Washington , 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004). Then, in 2012, the United States Supreme Court decided Miller , and, in 2013, petitioner filed this petition for post-conviction relief.¹ The superintendent responded with a motion for summary judgment, asserting that the petition was procedurally barred; the post-conviction court agreed and dismissed the petition. The Court of Appeals affirmed, and we allowed review. White v. Premo , 285 Or. App. 570, 397 P.3d 504 (2017), rev. allowed , 363 Or. 727, 429 P.3d 385 (2018).

Three procedural barriers to post-conviction relief are relevant here: a statute of limitations, a claim preclusion limitation, and a successive petition limitation. ORS 138.510(3),² 138.550(2), (3).³ The petition before us now is barred by all three of those procedural limitations, unless review is permitted by what we refer to as their "escape" clauses. Each of those escape clauses permit a petitioner to bring a claim that would be procedurally barred if the "grounds" on which the petitioner relies were not asserted and could not reasonably have been either asserted or raised in certain described circumstances.

Petitioner argues that because Miller had not yet been decided when he filed his direct appeal and his earlier post-conviction claims, he did not assert and reasonably could not have asserted or raised the "grounds" on which he now relies in those earlier proceedings. The superintendent counters that the term "grounds" refers not to a particular legal argument, but to a general type of claim—here, a claim that a sentence imposes cruel and unusual punishment—and that petitioner asserted that type of claim on direct appeal and in his earlier post-conviction proceeding. Alternatively, the superintendent contends that, even if the term "grounds" contemplates more specificity, petitioner previously asserted a claim that was "close" to a Miller claim or reasonably could have asserted such a claim, and, therefore, his present claim is procedurally barred. As we will explain, two of our recent cases demonstrate that petitioner has the better argument.

In the first case— Verduzco v. State of Oregon , 357 Or. 553, 355 P.3d 902 (2015) —this court considered whether the procedural bar against successive post-conviction petitions barred the petitioner's claim, and, in doing so, focused not on whether the petitioner had asserted the same general type of claim in both petitions, but, rather, on whether the petitioner had relied on the same legal rule to prove both claims of ineffective assistance of counsel. In his successive post-conviction petition, the petitioner relied on his lawyer's failure to give him the advice required by Padilla v. Kentucky , 559 U.S. 356, 130 S.Ct. 1473, 176 L.Ed.2d 284 (2010) : When the immigration consequences of pleading guilty to certain crimes are " ‘truly clear,’ " defense attorneys must advise their clients that deportation and other adverse immigration consequences will be " ‘practically inevitable’ " as a result of the plea. Verduzco , 357 Or. at 559, 355 P.3d 902 (quoting Padilla , 559 U.S. at 364, 369, 130 S.Ct. 1473 ). In his original petition, the petitioner did not cite Padilla because the Court had not yet decided that case, but the petitioner had alleged that his lawyer had failed to give him the very advice that the Court later required. Id. at 557-58, 355 P.3d 902. We concluded that the bar against successive petitions precluded the petitioner from relitigating a virtually identical claim. Id. at 573, 355 P.3d 902.

In our most recent post-conviction case, Chavez v. State of Oregon , 364 Or. 654, 438 P.3d 381 (2019), this court followed a path similar to the one it took in Verduzco , but reached a different destination. In Chavez , the petitioner, like the petitioner in Verduzco , filed a petition for post-conviction relief based on Padilla . Id. at 656, 438 P.3d 381. The petitioner's claim was untimely, but he argued that the escape clause applied. Id. at 658-59, 438 P.3d 381. The petitioner argued that Padilla had not been decided until some 12 years after his conviction and that he reasonably could not have raised a Padilla claim in the time permitted by the statute. Id. We agreed and, in doing so, said that the petitioner reasonably could not have anticipated the "ground for relief" on which he later relied—the legal rule adopted in Padilla . Id. at 663, 438 P.3d 381. Thus, Chavez and Verduzco both demonstrate that, as used in the escape clauses in the Post-Conviction Hearings Act, the term "grounds" means the legal rule asserted as a basis for a claim, not the general nature of the claim.⁴

We therefore turn to the superintendent's alternative argument that, even though petitioner did not cite and could not have cited the Miller rule in his previous proceedings, he previously made claims that were "close" to Miller claims or reasonably could have asserted that legal rule. Consequently, the superintendent contends, the escape clauses do not permit his current claim. Again, Chavez and Verduzco answer the argument advanced.

In Chavez , this court discussed the reason that it reached a different result in that case than it had in Verduzco .

364 Or. at 661-63, 438 P.3d 381. We explained that, in Verduzco , the petitioner had "litigated a virtually identical Sixth Amendment claim at roughly the same time that Padilla was pursuing his claim"; Chavez , we said, "arises in a different posture." Id. at 662-63, 438 P.3d 381. In Chavez , the petitioner had never asserted a claim that was "virtually identical" to the claim that the Court later decided in Padilla , and we were not persuaded that a Padilla claim reasonably could have been raised within two years of the date that the petitioner's conviction became final—"five years before the petitioners in Verduzco and Padilla raised that claim." Id. at 663, 438 P.3d 381. In reaching that conclusion, we recognized that some litigants had raised Padilla -type claims before Padilla was decided, but we reasoned that the statutory question is not whether a claim conceivably could have been raised but, rather, whether it reasonably could have been raised. Id. The answer to that question, we explained, depends on where the legal rule that forms the basis for a claim lies in a continuum: "[W]hen the underlying principle is ‘novel, unprecedented, or surprising,’ and not merely an extension of settled or familiar rules, the more likely it becomes that the ground for relief could not reasonably have been asserted." Id.

For the reasons that follow, we conclude that this case arises in the same posture as did...